JUDGMENT
1. This is a plaintiff's appeal arising out of a suit for recovery of possession and mesne profits in respect of 78.78 acres of land, alleged to form part of the plaintiff's mahal in village Birampur Kham in the district of Jaunpur. Defendant 1 is a "mutawalli" of a certain "wakf" to which, villages Gaura and Bhelpur belong. The other defendants, 55 in number, arc tenants in cultivating possession of the land in, dispute. The suit was dismissed by the lower Court, and the plaintiff appeals.
2. The plaintiff's village Bitrampur Kham lies on the northern bank of river Gomti. The defendants' villages Gaura and Bhelpur, lie on the south, with a westerly direction. The plaintiff's case, as set out in his plaint, is as follows:
The land in dispute lay on the north of river Gomti before 1894, and was an intergral part of village Birampur Kham. The river was flooded in the year 1894, and since that year gradually shifted to the north throwing up land on the south adjoining the defendants' villages Gaura and Bhelpur. This was in course of a number of years the river slowly receding to the north, throwing up land on the south, with the result that the land in dispute which was situate before 1894 on the north of the river, was thrown up on the south adjacent to villages Gaura and Bhelpur. It is clearly stated in the plaint that the river changed its course slowly and gradually. The plaint does not show how long this process of gradual accession on one side and loss on the other continued; but from the other evidence in the case which will be hereafter mentioned it appears that it must have continued till, at least, 1906. The plaint goes on to assert that the land in dispute was not culturable, being covered with sand and certain plants of spontaneous growth for a considerable length of time, and the tenants, parts of whose holdings were submerged and were thrown up on the south, surrendered those parts and discontinued paying rent to the plaintiff. According to the plaintiff, the defendants took possession of the lands in dispute in 1921, when a suit relating to the entire estate of the plaintiff was pending, and the plaintiff could not, owing to his pre-occupations, institute a suit for possession earlier than he did. The suit was instituted on 2nd July 1928. On these allegations the plaintiff claimed possession of the entire land which is indicated in a map prepared by the Commissioner, which also shows the, present bed of the river and its course in 1894.
3. Separate written statements were filed by defendant 1 and other defendants; but their defences are more or less identical. It was pleaded that the river Gomti had from ancient times been the boundary between the village Birampur on one side and villages Gaura and Bhelpur on the other, and that according to an immemoral custom the southern half of the bed of the river appertained to the defendants' villages and the northern half to the plaintiff's. According to the aforesaid custom, all land lying to the south of the deep stream belongs to villages Gaura and Bhelpur and that on the north of it to the plaintiff's village Birampur. Whenever any land is added by the river changing its course - whether the change is gradual or sudden - the deep stream continues to be the boundary between the plaintiff's village and the defendants' villages. The defendants also pleaded that the land in dispute had gradually accreted to their villages between the years 1885 and 1910 and that the plaintiff had never been in possession of any part of that land after 1910 since when the defendants had been cultivating the same. On these allegations the defendants put forward two distinct pleas : (1) They claimed the land in dispute to be theirs, as it had been acquired by them by gradual accretion within the meaning of Regulation 11 of 1825, and (2) apart from the aforesaid regulation, the defendants allege to have become entitled to the land by virtue of the custom above referred to, under which all land to the south of the Gomti and adjacent to villages Gauira and Bhelpur belonged to the proprietor of these villages. The defendants also pleaded limitation and adverse possession. A plea of misjoinder was also put forward, but it was overruled by the lower Court and has not been reiterated in this Court.
4. Three main questions emerge from these pleadings : (1) Whether the land in suit was so added to the defendants' villages by gradual accretion as to become their property under Regulation 11 of 1825? (2) Whether the custom under which all land lying to the south of the river Gomti and adjacent to villages Gaura and Bhelpur belongs to the proprietor of those villages has been established? and (3) Whether the plaintiff's claim is barred by limitation and adverse possession of the defendants?
5. The learned Subordinate Judge found on evidence that the land in dispute accreted to villages Gaura and Bhelpur slowly and gradually, but that in so far as it can be identified as land once lying to the north of the Gomti and being an integral part of village Birampur, the defendants are not entitled to it under Regulation 11 of 1825. On the question of custom the learned Subordinate Judge found in favour of the defendants, basing his decision on oral and documentary evidence. On the question of limitation the learned Judge held that land lying north-east of a dotted line appealing in the plan prepared by the Commissioner should be considered to have been in the plaintiff's possession within limitation and as to that land the defendants cannot be considered to have acquired any title by adverse possession. As regards that part of the land in dispute which is shown in the Commissioner's map on the south-west of the dotted line, the finding of the learned Subordinate Judge is that the land has been capable of actual possession for a considerable length of time - at least 20 years before the institution of the suit - and that the defendants have been in actual possession thereof openly and adversely. Accordingly the plaintiff's claim with regard to such land has been held to be barred by limitation and adverse possession of the defendants.
6. In appeal the above three questions have been argued and the findings of the learned Subordinate Judge have been traversed.
7. The finding of the learned Subordinate Judge that the land in dispute was thrown up on the south of Gomti gradually and in course of a number of years cannot be seriously challenged. Indeed, it is admitted in the plaint itself that this was so. An attempt was made by the plaintiff in course of evidence to resile from the position deliberately taken up in the plaint, and most of the plaintiff's witnesses stated that there was a sudden change in the course of the river in or about 1894 and the land in dispute was shifted to the south of the deep stream. The learned Subordinate Judge did not believe the plaintiff's witnesses on this point. The learned advocate for the plaintiff did not contend before us that the accretion in question was anything but gradual, as stated in the plaint. It is enough for us to quote the finding of the learned Subordinate Judge on this part of the case, as it has not been seriously challenged before us. It is as follows:
Plaintiff says that this action of the river was abrupt and sudden, while the defendants say that it was slow and gradual. Let us see which party is correct. Plaintiff's allegations made in para. 4 of the plaint are very material on this point. He says that the river began to erode its northern bank in. the floods of 1894, then she began to assume gradually a northern trend and in different years she left land towards south (which is in suit) with the result that she is now flowing in her present channel. Again in para. 5 of the plaint (it) is alleged that the change in the river course was followed by a corresponding formation of portions of land in suit. Further on, being questioned by the Court on 31st July 1929, the date of the settlement of issues, B. Bankey Tal, plaintiff's Pleader, stated that after the Hoods of 1894, the river began to erode land gradually and the land of plaintiff's mahal began to appear towards south with the advance of the river towards north by the process of encroachment. In view of the above clear admissions of act made by the plaintiff, there does not remain any doubt that the change in the course of the river was slow and gradual but not sudden and abrupt. Plaintiff had produced a number of witnesses to swear that the change was sudden but I am not going to believe them on the face of the above clear admissions. Some of these witnesses also say that the process was a slow and gradual one. Dalsingar Lal (P.W. No. 2) says that the river has taken its present course after gradual erosion. Ajodhya Prasad (P.W. No. 1) says that the 1st and 2nd changes in the river in years in 1894 and 1915 had been abrupt but subsequent to that she made only gradual changes. Under these circumstances it is not necessary to discuss defendants' evidence when plaintiff's own evidence establishes gradual erosion and slow formation of now land.
8. But the question arises whether, apart from custom, the defendants can be considered to have acquired a right to the land in dispute, which has been slowly and gradually added to his village by the action of the river. The answer to this question depends upon Section 4, Bengal Regulation 11 of 1825, which provides that:
When land may be gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed, whether, such land or estate be held immediately from Government by a zamindar or other superior land-holder, or as a subordinate tenure by any description of under tenant whatever....
The above rule shall not be considered applicable to oases in which a river, by a sudden change of its course, may break through and intersect an estate, without any gradual encroachment, or made by the violence of stream separate a considerable piece of land from one estate, and join it to another estate, without destroying the identity and preventing the recognition of the laud so removed.
9. These rules are subject to Section 2, under which any proved custom in derogation of the general rule enacted in Section 4, is to prevail. The first part of Section 4 creates an impression that in cases of gradual accretion the proprietor, to whose land alluvial land is added, becomes the owner of such land, provided the accretion has been gradual. There is no reference in that part of the rule to the condition that the land should be unidentifiable. The absence of this condition is prominently mentioned in the latter part of the rule which deals with cases of sudden change by which large areas are separated from one estate and added to another. The interpretation which has been placed by their Lordships of the Privy Council on the first part of Section 4, however, shows that, if the land, which has gradually accreted to the estate of one of the riparian proprietors, fan be identified as the land belonging to another such proprietor, the latter shall be deemed to continue to be the owner thereof in spite of gradual accretion. In a recent case Keshava Prasad Singh v. Secy. of State 1927 P.C. 89, it was found as a fact that the process of alluvion, by which the land then in suit was formed adjacent to the defendant's land was "slow, gradual and imperceptible."
10. Their Lordships nevertheless held that the lands continued to belong to the former proprietor as they could be recognised by careful measurement. Their Lordships reviewed earlier cases including the well known case of Lopez v. Muddun Mohun Thakoor (1869) 13 M.I.A. 467. They approved certain observations occurring in those cases one of which is as follows:
We are of opinion that the word 'gained' in Section 4, Regulation 11 of 1825, does not extend to cases of land washed away and afterwards reformed upon the old site which can be clearly recognized.... In such a case we think the land formed by accretion on the old recognized site remains the property of the owner of the original site. The principle is that where the accretion can be clearly recognized as having been reformed on that which formerly belonged to a known proprietor, it shall remain the property o£ the original owner.
11. An argument to the contrary addressed to their Lordships in which it was contended that the old proprietor lost his proprietary right in consequence of gradual accretion to the proprietor to whose land it accreted was not accepted. As against this, our attention has been drawn to a later case reported in Secy. of State v. Foucar & Co. Ltd. 1934 P.C. 17, in which their Lordships are reported to have held that:
The principle, that gradual accretion enures to the land which attracts it, is one that has been recognized from very early times. The rule is of general convenience and security and is necessary for the mutual adjustment and protection of property. The general principle of accretion applies even where the former boundaries of the land on the waterfront are known or capable of ascertainment.
12. The case went up in appeal from Burma where Regulation 11 of 1325 is not in force. At the same time it must be admitted that their Lordships based their decision on general principles and English cases which are also partly the basis of decision in Keshava Prasad Singh v. Secy. of State 1927 P.C. 89 following as it does Lopez v. Muddun Mohun Thakoor (1869) 13 M.I.A. 467 and other similar cases. For the purpose of the case before us which is governed by Regulation 11 of 1825 we think that the interpretation placed by their Lordships on Section 4 of that Regulation in the Dumraon case must be accepted.
13. A possible mode of reconciling the apparently conflicting observations made by their Lordships of the Privy Council in the two cases above referred to may be found in the fact that the Rangoon case was between the Crown and subject. In Lopez v. Muddun Mohun Thakoor (1869) 13 M.I.A. 467 their Lordships observed that:
It would certainly seem that something more than mere reference to the acquisition of land by increment by alluvion, or by what other term may be used, would be required in order to enable the owner of one property to take property which had been legally vested in another. In truth, when the whole words are looked at, not merely of that clause, but of the whole Regulation, it is quite obvious that what the then legislative authority was dealing with, was the gain which an individual proprietor might take in this way from that which was part of the public territory, the public domain not usable in the ordinary sense, that is to say, the sea belonging to the state, a public river belonging to the state; this was a gift to an individual whoso estate lay upon the river or lay upon the sea, a gift to him of Unit which, by accretion, became valuable and usable out of that which was in a state of nature neither valuable nor usable.
14. Where the bed of the river belongs to the Crown and the land on the one side of it also belongs to the Crown, as in the Rangoon case any accretion to the land of the proprietor on the other side is at the expense of the state and the consideration mentioned in the above observation may not hold good in such a case.
15. In view of these authorities we think that the learned Subordinate Judge rightly held that the disputed land having been identified to have been part of Birampur, the defendant cannot claim it only because it has gradually accreted to their villages Gaura and Bhelpur.
16. The most important point in the case is whether the defendants have succeeded in establishing the custom set up by them. They rely upon the proceedings before the Settlement Authorities in 1880 in respect of a certain land which had been transferred from the northern bank of Gomti to the southern bank. It is not disputed that that land had also formed part of the plaintiff's village Birampur aid was by the action of the river added to the defendants' villages Gaura and Bhelpur. The case was started on the report, of a sazawal in the service of the Court of Wards under whose superintendence the plaintiff's estate then was. It was stated in that report that an area of 28 bighas odd which was part of village Birampur had been transferred to the other side of the river and it was prayed that the old boundary be maintained so that part of the plaintiff's village would lie on the southern bank of river Gomti. The sazawal's report was confirmed by a report of the patwari of the plaintiff's village. The defendant's village Gaura was at that time held by a lessee who entered appearance and claimed the land for his lessor. Subsequently the latter's karinda also made an application claiming the land to be part of the village Gaura. Both of them rested their claim on the custom under which the deep stream is the constant boundary between the plaintiff's estate and that of the defendant. It was said that half of the bed of the river belongs to Gaura and the other half to Bhelpur wherever the bed of the river may be. A number of witnesses were examined on behalf of the then proprietor of Gaura. They stated that the deep stream is the constant boundary between the two villages. No witnesses were examined on behalf of the Court of Wards. The Settlement Deputy Collector made a report dated 18th October 1880 which is at one place somewhat obscure, directing that the deep stream of the river should be recognised as the boundary between villages Bhelpur and Gaura. He also recorded a finding that the land had gradually accreted to the village Gaura since 1273 Fasli (1865-6). The Deputy Collector expressly repelled the contention put forward on behalf of the Court, of Wards that the boundary should be fixed at the old bed of the river. The record of the case was subsequently laid before the Settlement Officer who ordered on 27th November 1888, that : "The river be considered as the boundary and that the case be sent to the Court of the Deputy Saheb."
17. It is argued on behalf of the plaintiff-appellant that neither in the report of the Deputy Collector nor in the order of the Settlement Officer there is any mention of custom. This is true; but we cannot ignore the fact that the custom had been clearly set up on behalf of the proprietor of Gaura who led evidence in support of it. The order of the Settlement Officer, if not also the report of the Deputy Collector is consistent only with, the hypothesis that the custom set up by the proprietor of village Gaura was found to exist. An accretion of about 28 bighas in course of a few years could not confer any title on the proprietor of Gaura in the absence of a custom.
18. The learned Subordinate Judge treated the statements of witnesses examined before the Settlement Deputy Collector as evidence in this case. The learned advocate for the plaintiff-appellant contended that those statements are not admissible in evidence. It was replied on behalf of the defendants that the statements are admissible under Section 33, Evidence Act, as the same question was involved on that occasion as in the present case. We do not think that this contention is sound. Section 33, Evidence Act, makes evidence given by a witness in "a judicial proceeding" admissible in evidence in a subsequent judicial proceeding, where the question in controversy in both proceedings is identical and where the witness is dead or cannot be found or is incapable of giving evidence, etc. In this case the proceedings before the Settlement Deputy Collector cannot be considered to be "judicial proceedings" as the dispute was in respect of the boundary between two villages for fiscal purposes and therefore Section 33, Evidence Act, will not make the statements admissible in proof of the custom now sought to be established by the defendants. At the same time, we do not think that the statements can be excluded altogether. They may not be admissible by themselves as evidence of the custom now in controversy, but they can be looked into to assess the value of the Deputy Collector's report and of the Settlement Officer's order which recognised the existence of the custom now in question. It cannot be doubted that the report and the order are admissible in evidence under Section 13, Evidence Act, as recognising the custom now in dispute. To ascertain whether the recognition then extended to the custom was based on substantial evidence, it is permissible to refer to the evidence on which it was based. The statements are not evidence by their own force on the question of custom but only furnish evidence of the materials on which the Settlement Authorities based their view.
19. It appears that in 1894 some more land was thrown up on the south of the river and the patwari of village Birampur made a report asking for orders as to how the land should be recorded. It does not appear whether any notice was given to the parties. In any case the order which followed does not show that it was passed in the presence of the parties. The Assistant Collector who passed orders on that report directed that the land should be continued to be recorded as part of village Birampur. The ground on which, that order was based is that no custom of dhar dhura is recorded in the wajib-ul-arz. Great reliance is placed on this order on behalf of the plaintiff-appellant. It is contended that it tends to disprove the custom set up by the defendants. While it cannot be denied that the order of the Assistant Collector is a piece of evidence on the question whether the custom exists its value in our opinion is not great. The Assistant Collector expressed that opinion only because the wajib-ul-arz did not record the custom of dhar dhura. If his attention had been drawn to the order of the Settlement Officer passed in 1880, he might have taken a different view. All that the order shows is that the absence of entry as regards custom in the wajib-ul-arz was considered to be decisive. We do not think that this is quite correct. As against this, we have the fact that the land to which the order related has been in possession of the defendants and is part of that now in suit. Though it continued to be recorded as part of village Birampur no acts of ownership were exercised by the plaintiff at any time after that order was passed. The defendants on the other hand have all along been in possession. In these circumstances, we do not think that the Assistant Collector's order above referred to can afford any rebuttal of the order of the Settlement Officer passed in 1880.
20. Reliance is also placed on behalf of the plaintiff on the wajibularzes of villages Gaura, Birampur and Tilwari According to the plaintiff, the fact that that none of them records a custom of dhura affords evidence of a negative character namely, that the custom did not exist in that locality; otherwise, it is said, it would have been recorded in the wajibularz. We are not impressed by this argument. The only paragraph in which the existence of such a custom (if it existed) could be re-corded is No. 10 which is headed thus:
Mode in which gain and loss caused by alluvion and diluvion should be adjusted among he co-sharers inter se.
21. In some wajibularzes the entry is "nil." In one, that of village Gaura it is stated: "The river Gomti lies towards the north, but it does not cause alluvion and diluvion." The wajibularze was prepared sometime in 1291 Fasli (1883-4). In the first place, the paragraph in question as its heading indicates relates to "Rights of co-sharers amongst themselves on the basis of custom or agreement." that is to say, any arrangement or usage, which is recognised in the village as regards the manner in which alluvial land is to be enjoyed or the loss arising from diluvion is to be borne by the co-sharers of that village, is to be recorded. It has no reference to any custom which is to regulate the respective rights of the riparian owners such as the plaintiff and defendant 1 are.
22. There is no other documentary evidence which can throw any light on the question of custom. There is a mass of oral evidence adduced by both parties. The witnesses for the plaintiff stated that there is an immemorial custom under which the deep stream of the river Gomti is the constant boundary between the village Birampur on one side and villages Gaura and Bhelpur on the other. It will serve no useful purpose to comment, upon the evidence of individual witnesses. We may refer as a sample to the evidence of D.W. Sitla Bux who states:
There is dhar dhura custom prevalent in these villages. According to this custom the central portion of the stream is always the dividing line this custom is not affected by the gradual or abrupt formations of new land.... The custom of dhar dhura is very old and has been always followed. I have heard it from my ancestors.
23. Other witnesses examined on behalf of the plaintiff make similar statements. Those examined on behalf of the defendants to negative the custom made it a point to state that the land in dispute was transferred from the north to the south side of river Gomti by a sudden change. The learned Subordinate Judge before whom all the witnesses produced by the parties were examined has disbelieved the defendants' witnesses holding that they have perjured themselves on this point, their evidence being diametrically opposed to what the plaintiff himself admitted in his plaint and through counsel examined on the day of issues.
24. The witnesses examined on behalf of the plaintiff are decidedly better in quality. It is certainly possible to level some criticism against most of them, but there is no serious flaw in their evidence. Moreover, as the learned Subordinate Judge has pointed out, their evidence finds support not only from the proceedings before the Settlement Officer in 1889 but also from the evidence of one of the plaintiff's own witness Musai who was examined on behalf of the plaintiff on some other point : but the defendants succeeded in eliciting from him a clear statement that the custom set up by them exists. He says:
Similarly there is immemorial custom in villages Bhelpur, Gaura and Birampur that the centre of the stream is the dividing line.
25. The conduct of the plaintiff and his predecessor in relation to this and other lands transferred to the south of the river gives rise to an inference adverse to him. Since 1273 Fasli (1865-6) the river has been receding towards the north throwing up land on the south. It is clear from the report of the Settlement Deputy Collector already referred to that the land in question before him had been thrown up after that year. There was some more land transferred from one side of the river to the other between the years years 1880 and 1894 when the patwari made a report and the Assistant Collector passed an order that the land should continue to be recorded as part of village Birampur. We have already referred to that proceeding. It is the plaintiff's case that part of the land in dispute was lost to him after 1894. The documents which have been filed by the plaintiff will show that there were numerous proceedings between 1898 and 1906 for abatement of rent of tenants holding land washed away after 1894. It is remarkable that since the year 1865 till the institution of the present suit in 1928 the plaintiff never asserted his right to the lands which were formerly his but were added from time to time to the defendants' village by the action of the river. We have it from his own witness Aiudhia Prasad (p. 59) that:
After 1894 the people of village Birampur did not go to take possession of their respective lands washed out and formed into fresh land on the side of Gaura. In the same way land which had been washed out by the river and formed into new land towards Gaura village was not claimed by Birampur people. Birampur tenants never cultivated the said alluvial land.
26. Another witness Dalsirigar examined by the plaintiff makes a similar statement, though he adds that Birampur tenants used to take sarpat, madar and babul from the other side of the river which cannot be believed. The witnesses examined by the defendants state that whenever any land appeared on the south the defendants took possession of it without let or hindrance.
27. The sum up the evidence for and against the custom set up by the defendants we find that it was recognised by the Settlement Authorities in 1880 and that recognition was based on the evidence of a number of witnesses; that the custom was not recognised in 1894 by the Assistant Collector who however acted merely on the absence of any entry as to custom in the wajibularz; that there is a mass of oral evidence adduced by the plaintiff consisting of the statements of witnesses who depose to having heard the custom from their deceased ancestors; that as against this class of evidence, the oral evidence adduced by the plaintiff is unreliable; and lastly, the conduct of the plaintiff gives rise to the inference that he always acquiesced in the loss of land recognising the river as the constant boundary between his village and those of the defendants. In Rajendra Narain Dhanj Deo v. Ganga Nanda Singh 1925 P.C. 213 their Lordships held that an immemorial custom within the meaning of Section 2 of Bengal Regulation 11 of 1825 was established on the evidence of witnesses who spoke from their personal; knowledge of what happened during 20 years and from hearsay as regards remote past. In the case before us we have oral evidence of that description which is very materially corroborated; by documentary evidence and certain circumstances to which we they referred. The learned Subordinate Judge recorded a definite findings on the strength of the evidence mentioned, above that the custom set up by the defendants exists. Having carefully considered the entire evidence and the arguments addressed to us on behalf of the plaintiff-appellant, we do not find any ground for interfering with the well considered finding of the learned Judge of the Court below. Accordingly we affirm it and hold that the defendants have established the custom under which the deep stream of the river Gomti is the boundary between the village Birampur and the villages Gaura and Bhelpur.
28. The only other question that remains to be considered is one of limitation and adverse possession. The learned Subordinate Judge held that Article 144, Limitation Act, is applicable and that the burden lies in the first instance on the defendants to establish their adverse possession. The learned advocate for the defendants-respondents has challenged the correctness of this view and has referred us to two-recent decisions of this Court. The case of Kunji v. Niaz Hussain 1934 All. 362 was decided by a Division Bench in which it has been held that where the plaintiff sues for recovery of possession on the allegation that he was dispossessed or that his possession discontinued sometime before the institution of the suit, the proper article to apply is 142. The same view has been taken in Bindhyachal Chand v. Ram Gharib Chand 1934 All. 993. It is pointed out that in the present case there is a definite allegation in the plaint that the plaintiff was dispossessed in 1921. Accordingly, it is argued, the burden lies on the plaintiff to show that he was in possession of the land in dispute within 12 years before the institution of the suit. It seems to us that for the purposes of the present case it is immaterial whether Article 142 or Article 144 be applied. The learned Subordinate Judge has divided the land in dispute into two portions. That, lying to the north of a dotted line shown in the Commissioner's map has been held to be unaffected by the defendants' adverse possession, as according to the finding of the learned Judge, it used to be under water for sometime every year. As regards the rest of the land which lies on the south of the dotted line, the finding is that it has been in exclusive possession of the defendants for more than 20 years. If these findings be accepted, the conclusion will be the same whether we apply Article 142 or Article 144. During the period of submergence the plaintiff - assuming he had the title vested in him should be deemed to be a constructive possession of the land under water. This state of constructive possession should, on that hypothesis, hold good for sometime every year, so that the plaintiff should be deemed to have been in possession every year before the institution of the suit. This view is in accord with the Secy. of State v. Krishnamoni Gupta (1902) 29 Cal. 518 and Ram Naram v. Deoki Misair 1923 All. 75, which appears to be on all fours with the present case on this pointy As regards the other land, it was argued on behalf of the plaintiff that it was not fit for cultivation for a long time and that it has been cultivated for less than 12 years before the institution of the suit. The learned Subordinate Judge has however found that practically the whole of the uncultivated portion of the land was overgrown with babul and madar trees and sarpat (reed) and that the defendants have been apportioning such benefit as the babul trees and other produce were capable of yielding. We are in agreement with the learned Judge in holding that the defendants' possession of this part of the land was adequate as regards continuity and extent, we have already referred to the evidence which shows that no attempt was ever made on behalf of the plaintiff to take possession of this land and that as any strip of land emerged from water it was taken possession of by some or the other of the defendants. In this view the plaintiff cannot be considered to have been in possession within limitation, and the defendants must be considered to have had adverse possession of the whole of this part of the land in dispute. The result is that this appeal fails and is dismissed with costs.
29. We place on record our appreciation of the care and thoroughness which characterised the judgment of Mr. Marthura Prasad, the learned Subordinate Judge who tried this case, which must have presented many difficulties in earlier stages and involved difficult questions of law and fact.